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Prime Minister V Governor-General [1998] SBHC 41; HC-CC 150 of 1998 (10 September 1998)

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Prime Minister V Governor-General [1998] SBHC 41; HC-CC 150 of 1998 (10 September 1998) Prime Minister v Governor-General [1998] SBHC 41; HC-CC 150 of 1998 (10 September 1998) HIGH COURT OF SOLOMON ISLANDS HC-CC150 of 1998 THE PRIME MINISTER -V- THE GOVERNOR-GENERAL High Court of Solomon Islands Before : Muria, CJ. Civil Case No. 150 of 1998 Hearing: 8 September 1998 Judgment: 10 September 1998 P. Afeau the Attorney General and with him Mr. B. Titiulu for Plaintiff C. Hapa for His Excellency The Governor - General MURIA CJ: This is an application by the Plaintiff of by way of an Originating Summons seeking the determination of a number of questions against His Excellency The Governor - General of Solomon Islands. The plaintiff is the Prime Minister of Solomon Islands who was elected to that Office on 27 August 1997 pursuant to the provisions of Schedule 2 to the Constitution. The questions posed by the plaintiff for the determination by the Court are as follows: 1. Whether or not in the circumstances that prevailed or obtained on 1st September 1998 it was lawful for the Governor - General, by Proclamation, to convene a Special Meeting of Parliament on 8 September 1998 contrary to the advice of the Prime Minister for the sole purpose of debating a motion of no- confidence in the Prime Minister. 2. Whether or not in the circumstances that prevailed or obtained on 1st September 1998, it was lawful for the Governor General to convene a Special Meeting of Parliament on 8th September 1998 in total disregard of the Parliament Standing Orders. 3. Whether or not it was lawful for the Governor - General to alter the decision of his office made by the Acting Governor - General on 11 August 1998 not to have a special meeting of Parliament, as a Parliament Meeting had already been set for 12 October 1998. 1 4. If the answer to all or any of the above questions is in the negative the Court to make the following consequential orders - (a) Any Meeting of Parliament held pursuant to the said Proclamation is null and void (b) Any actions, proceedings or decisions taken pursuant to the said Proclamation or taken at any such meeting is null and void. (c) Any expenditure, or costs incurred on, for, or in respect of such a meeting is unauthorised and unlawful. I set out the circumstances giving rise to these proceedings. Following the last general election in August last year, 1997, the Hon. Bart Ulufa'alu MP was elected Prime Minister on 27 August 1997. After 3 August 1998, almost a year later the SIAC Government had been said to lose six (6) of its members (three Ministers and three backbenchers) to the Opposition. In the meantime the Prime Minister had advised that Parliament is to meet on 12 October 1998 mainly for the 1999 Budget and several Government bills (see Annexure "BU 1" to the plaintiff's affidavit). Accordingly the Clerk to Parliament advised all Members of Parliament of the proposed meeting of Parliament on 12 October 1998. On 7 August 1998 the Opposition wrote to His Excellency advising him that the Government did not have the majority support in the House and urged His Excellency to convene an urgent meeting of Parliament so that a motion of no confidence can be moved against the Prime Minister. His Excellency The Acting Governor - General, advised the Prime Minister of the Opposition's letter and thereafter, wrote to the Opposition on 11 August 1998 advising them that Parliament would still meet as scheduled, that is, on 12 October 1998. Obviously, the Opposition were not happy with H.E.'s response because they wrote again to His Excellency urging him to change his decision and to convene Parliament earlier than 12 October 1998. The Governor - General returned from his medical trip overseas and resumed duties on 15 August 1998. Thereafter, the Prime Minister consulted with His Excellency on two occasions regarding the political situation and the numerical strength of the Government and question of calling Parliament earlier than 12 October 1998. It is worth noting what the Prime Minister said took place on the two occasions when he called on His Excellency The Governor - General. He said in para. 18 of his affidavit: 18 On those two occasions I tendered advice to the Governor - General as required as follows - (1) The Prime Minister was not required by the Constitution to submit a list of his supporters to the Governor - General. That would be determined on the floor of Parliament. (2) Parliament was set to meet on 12 October 1998 and there was no justification for an urgent special meeting. 2 (3) There were no funds for such special meeting of Parliament. (4) The Acting Governor - General had decided to have Parliament meeting on 12 October and he himself had confirmed it and there was no reason or justification to alter the decision. (5) A decision to call a Special Meeting of Parliament just for a motion of no-confidence in the Prime Minister in these circumstances will set a bad precedent for political instability in this country. (6) Must take into account the national interest and that political stability at this time was crucial now that the Government was beginning to put things right by settling some of country's huge debts, as well as undertaking the Structural Reform Programme Exercise. Maintaining the confidence of our development partners was crucial. (7) The Government continued to perform its duties and was not doing anything unlawful. It is also suggested that His Excellency had met with Opposition Members since 15 August, 1998 and continuously urged him to convene a special meeting of Parliament earlier. The implication here is that the decision by His Excellency to order Parliament to convene on 8 September instead of waiting for 12 October 1998 as earlier agreed to by His Excellency The Acting Governor-General, was the result of the pressure from the Opposition. The third occasion the Prime Minister met with His Excellency was on 1 September 1998. The Prime Minister was called to Government House in the afternoon on that day. After some discussion on the political situation, His Excellency handed to the Prime Minister a letter dated 31 August 1998 in which His Excellency ordered by proclamation that Parliament meet at 09.30 on Tuesday 8 September 1998 to consider the motion of no confidence. Naturally the Prime Minister was very disappointed and displeased at the action taken by His Excellency as a result of the circumstances described, the Government instructed the Attorney General to institute these proceedings. At the hearing on 7 September 1998, Mr. Nori appeared and applied to have the Leader of Opposition joined in as a party to these proceedings. The Court refused that application on the basis that the questions posed for the determination by the Court arose out of the decision made by His Excellency. No question had been asked of the Court to determine regarding any conduct or action taken by the Opposition. The issues arising out of the action taken by His Excellency and posed in the questions raised in the Originating Summons are purely legal issues which the presence of the Leader of Opposition as a party would not matter. The Court agreed that the Leader of Opposition is an interested party in this case but in the circumstances of this case, that interest does not justify this Court making an order joining him as a party. These proceedings are not between the Government and Opposition. This case challenges the lawfulness of the Governor- General's decision and will be decided on that basis. 3 Also on 7 September 1998, the Court directed that His Excellency be legally represented in these proceedings, in view of the Constitutional importance of the case, not only to the public and the Government but also to the Office of the Governor-General. As a result of that direction His Excellency has now been legally represented in the matter. As the hearing of this case would not obviously be concluded before the scheduled meeting of Parliament on 8 September 1998 as ordered by His Excellency, the Court bearing in mind that one of the businesses or perhaps, the only business for the meeting on 8 September 1998 is the Motion of no Confidence, directed that the said Motion be not debated until the determination of this case. It is obvious that the Court does not intend to interfere with the lawful authority of those persons empowered to summon Parliament to meet. Hence the direction of the Court is confined to the subject matter to be debated in Parliament and which is pending in Court. It is to be noted that the plaintiff has not raised any argument that His Excellency does not have the power to summon Parliament. Section 72(1) of the Constitution vests the function of appointing the place and time of holding of sessions of the Parliament in His Excellency The Governor-General. This is now confirmed by Francis Billy Hilly & Ors - v- Moses Puibangara Pitakaka & Another, CC299/94(CA) and Governor-General of Solomon Islands -v- Francis Billy Hilly & Ors, Civ. App. 10/94 (CA). While possessing the power to summon Parliament, it must be exercised in the light of the circumstances warranting its exercise. The Court of Appeal found that the circumstances which obtained on 13 October 1994 warranted the exercise of the power under section 72(1) and so the Governor-General's action in directing the Speaker to convene Parliament was lawful in that case. The plaintiff in the present case raises a number of issues.
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